Covid-19 Vaccination and Employment – Is it legal for Employers to say ‘No jab, no job’?
2 February 2021
Almost a year after the start of the pandemic the UK are seeing the roll out of a nationwide vaccination program to vaccinate individuals against Covid-19. The government have been explicit in their messaging that mandatory vaccination is not expected at a national level – public health legislation expressly prohibits it. Yet, in spite of the government’s position, we have seen at least one employer publicly commit to a “no jab, no job” policy in recent weeks.
The idea of mandatory vaccinations had set alarm bells ringing for many, including employment lawyers – mandatory vaccination is certainly an employment law minefield for a host of reasons.
Employees with the necessary qualifying service, which is one year in Northern Ireland, may bring unfair dismissal claims, if they are dismissed because they have refused to be vaccinated. To defend these claims successfully, the employer would need to show a fair reason for dismissal and that the employer acted reasonably in treating that reason as a sufficient reason for dismissal.
Furthermore, there is certainly an argument that an employee faced with mandatory vaccination could resign and claim constructive unfair dismissal.
In both scenarios the tribunal will consider the case on its facts and merits. We anticipate that in assessing the reasonableness of the employers actions the tribunal will consider the nature of the employer’s business, the role and duties of the individual dismissed, whether or not the employee had a legitimate reason for not wishing to be vaccinated and whether or not there were any alternatives to dismissal and if so were these considered by the employer.
For example, it is likely that a dismissal for refusal to accept a vaccination will be considered more reasonable where the employee works in close contact with vulnerable people. Whereas the decision to dismiss will be much less reasonable in a situation where the employee is a lone worker with little to no client or customer contact.
One of the biggest issues that employers will face if they seek to introduce mandatory vaccination is the risk of discrimination. Employees (and also employment applicants) have legal protection from certain forms of discrimination under various pieces of legislation. There are many foreseeable arguments as to how mandatory vaccination may potentially clash with these rights.
For example, as the vaccine is being rolled out in priority groups which are largely dependent on age, there could be an argument that an employer’s requirement for vaccination is indirectly discriminatory against employees who are relatively young.
We can also see arguments that mandatory vaccination policies could also give rise to claims relating to sex, pregnancy and maternity discrimination, given that current the vaccine is not recommended for those who are pregnant. Furthermore, there may be disability discrimination arguments in relation to those who have been advised not to get the vaccine for medical reasons.
Finally, the ingredients or processes used in developing and testing a vaccine may give rise to objections on religious grounds.
One angle that will be different in Northern Ireland when compared with the rest of Great Britain is that in Northern Ireland under the Fair Employment and Treatment (Northern Ireland) Order 1998, individuals are protected against discrimination on the grounds of political opinion. Whilst it remains untested in the tribunal there is certainly an argument that being “anti-vax” is a political opinion.
Employers may have a defence to certain acts of indirect discrimination if the discriminatory requirement can be justified. It must be a proportionate means of achieving a legitimate aim. Whether an employer’s aims are legitimate, or a vaccination requirement is a proportionate way to achieve those aims, is a matter for the tribunals and courts to decide.
Many employers appear to be ramping up to ‘return to normal’ upon the roll out of the vaccine, however this is unlikely to be the case. Setting aside the legalities and the employment risks identified above, mandatory vaccination is not necessarily the all encompassing answer employers have been wishing for.
Vaccinated people are not exempt from self-isolation requirements;
Vaccinated people may still transmit the virus to others;
The length of protection offered from vaccines is unclear; and
Private vaccinations are not readily available, and for many people, vaccination is not imminent.
In the circumstances, the suggestion of mandatory vaccinations in the workplace appears to be a hasty reaction from a small number of employers, who appear to be wading into unchartered and certainly murky waters from an employment law perspective.
Employers should seek advice before introducing any form of mandatory vaccination requirement. A safer option would be for employers to stop short of mandatory vaccination policies and instead focus on encouraging and facilitating voluntary vaccination.
If you are an employer or an employee, and have concerns or questions about any of the issues raised in this article, please contact the Employment Law team at MKB Law.